ORDERRASHEED A. RAZVI, J. - Through this common order, I intend to dispose of two (2) interlocutory applications, filed by the plaintiffs for prohibitory injunction against the defendants in these suits, as the question of infringement and copyright pertains to the same set of books.
2. In Suit No. 338/1996, it is claimed that plaintiff No.1, namely, FEP International (Pvt.) Limited is a company incorporated under the Laws of Singapore with its head office at Singapore, while defendant No. 2, namely, FEP International (Pvt.) Limited, Karachi is a company incorporated in Pakistan under the Companies Act, 1913 (now Cpmpanies Ordinance, 1984), hereinafter both these companies are referred to as the FEP Singapore and FEP Pakistan", respectively. It is further claimed that FEP Pakistan was duly incorporated in Pakistan and registered with the Registrar, Joint Stock Companies, on 29th July, 1980. In this suit, defendant is also a company namely, Friend Education Publisher (hereinafter referred to as Friend Publisher) which is a company incorporated under the Companies Ordinance, 1984 on 23rd November, 1995. Suit No. 472/1996 is filed by M/s Friend Publisher Ltd. (defendant in Suit No.3381996) for perpetual injunction against FEP Singapore and FEP Pakistan.
3. The case of the plaintiffs in Suit No.338/1996 is that through a memorandum dated 20th September, 1985, FEP Singapore granted FEP Pakistan unrestricted copyright to adapt, print, publish and sell in volume form, the works published FEP Singapore. However, copy of such memorandum was neither produced in Suit No.338/1996 nor in Suit No.472/1996. In paragraph 5 of the plaint, it is claimed that the plaintiffs have obtained copyrights in respect of some thirty nine publications, details of which have been disclosed in that paragraph. Plaintiffs have also filed annexures A/11 to A/39 which are- certificates of registration of copy-rights, issued by the Registrar of Copyrights, Karachi and pertain to the period commencing from December, 1992 to March, 1993, which are in respect of all such books as disclosed in paragraph 5 of plaint in Suit No.338/1996. It is further case of the plaintiffs that they have, also applied for registration of copyrights in respect of some fifty eight publications, details of which have been disclosed in paragraph 6 of the plaint, which proceedings are still pending before the Registrar, Copyrights. Present grievance of the plaintiffs is that the defendant namely Friend Publisher with the similar name of FEP (Pvt.) Limited itself got registered with the Joint Registrar of Companies, Sindh, in utter disregard of Section 37(2) of the Companies Ordinance, 1984, and is publishing, printing .And circulating books as mentioned in paragraph 5 of the plaint; that on 8th November, 1995 the defendant wrote to FEP Singapore expressing their desire to publish their general books for children in Pakistan which was not approved by FEP Singapore. In support, they have filed a'nnexures B &.C with the plaint. It is claimed in the plaint of Suit No.338/1996 that Friend Publishers have, committed acts of infringement of, copyrights in respect of text books/literary works .As mentioned in paragraphs 5 & 6 of the plaint imd that the acts of defendant by illegally and unauthorisedly producing, publishing and selling the same, which amounts to infringement of copyrights of the plaintiffs, who are the lawful owners, the defendant has caused damage and losses to the plaintiff. For this reason, it is claimed by the FEP Singapore and FEP Pakistan that they have suffered irreparable loss and injury to their business.
They have prayed for permanent injunction restraining Friend Publisher, their men servants, agents, distributors,. Salesmen, booksellers from committing infringement of copyrights of plaintiffs in respect of books as mentioned in paragraphs. 5 and 6 of the plaint, pending disposal of the suit.
4. Messrs Friend Publisher in their written statement as well as in their counter affidavit disputed the present status of plaintiff No.1 namely FEP Singapore and have stated that the FEP Pakistan has no written authority from the original author to publish such books. It has also claimed that there is no contract of assignment between FEP Singapore and FEP Pakistan. However, they have not specifically denied contents of paragraph 11 of the plaint, wherein it was alleged that Friend Publishers have approached FEP Singapore for obtaining assignment of their copyrights. In their written statement, it is submitted that through a publication in a leading newspaper of Singapore The Straits Time they had invited objections from relevant quarter for the publication of such books, which are the same books which the FEP Singapore and FEP Pakistan have claimed in paragraphs 5 and 6 their suits. It is further case of Friend Publishers that till this date they have not received any objection.
5. Facts of Suit No.472/1996 are more or less similar as of the above suit except that the parties are interchanged. In this suit Friend Publishers have Filed application under Order XXXIX, Rules 1 and 2, C.P.C.. (CMA-2944/1996) seeking temporary injunction against FEP Singapore and FEP Pakistan, their agents, distributors, and representatives restraining them from committing infringement of their rights in respect of -the. Books as disclosed in paragraph 3 of the plaint in Suit No. 472/96. In this suit, defendants namely, FEP Singapore and FEP Pakistan have filed joint written statement and their case is identical as of the plaintiffs in Suit No.338/96. However, in this suit along with their statement they have also filed an affidavit of Cho Jock Kim as Annexure D through which signatures on Annexures A&B filed with the written statement in Suit No. 338/1996, have been denied. Mr, Hassan Inamullah has raised objection to the admissibility of this affidavit as it was not sworn before the competent officer of the Embassy of Pakistan at Singapore.
6. I have heard Mr. Munawar Ghani, Advocate who has appeared on behalf of FEP Singapore and FEP Pakistan and Messrs Hassan Inamullah and Ch. Tanveer Amjad,.Who have appeared on behalf of Friend Publishers. It was contended by Munawar Ghani that in view of certificates of copyrights, issued by the Registrar of Copyrights and which were filed as Annexures A/l to A/39 with the plaint in Suit No.338/1996, the plaintiff No.2; namely FEP Pakistan has become lawful hwner of the copyrights and that the registrations are prima facie'proof of the same. He has referred to section 42 of the Copyright Ordinance, 1962. He has argued that till this date VIessrs Friend Publishers have not applied for rectification of his registration as provided under Section 41(2) of the Ordinance, 1962. This fact has not been denied by the defendant. He has also argued that the permission obtained by the defendant (Friend Publisher) from Provincial Government is defective and does not create any authority or entitlement in them to print, publish and sell all such books for which FEP Pakistan has obtained registration from the copyrights in Pakistan. On the other hand, it has been vehemently denied by Messere Hasan Inamullah and Tanveen Amjad that in absence of any agreement or assignment from FEP Singapore to FEP Pakistan, they were not entitled to obtain such registration. They 'have also argued that there exist several irregularities in grant of registration to FEP Pakistan. They have heavily relied on the permission extended by the Provincial Government, which they have filed as Annexures B/l, to B/8 with their Suit No. 472/1996. Mr. Hasan Inamullah has also referred to the case of Shakeel Adilzada u. Pakistan Television Corporation and 2 others (1990 CLC 714) and the case of Riaz Ahmed Mansuri v. Abid Ali Qazi and 2 Others (1990 MLD 1786).
7. In the case of Shakeel Adilzada (supra) a Division Bench of this Court comprising of Ajmal Mian and Mukhtar Ahmed Junejo, J.J., (as their lordships then were), while hearing High Court Appeal against the order of a learned single judge whereby injunction was refused to the plaintiff, endorsed the views expressed by the learned single Judge Mamoon Kazi, J., that the assignment must be in writing signed by the owner of the copyright and maintined the order of the single judge refusing to grant interim injunction. In that case the original author of the play JANGLOOS was before the Court as defendant respondent No.2, who disputed the fact that he had assigned any absolute right in favour of the plaintiff. In the instant case, the original author of the publications are not before this Court. The original publishers (FEP Singapore) have signed and verified on oath a joint plaint (Suit No. 338/1996) and has also filed a joint written statement (Suit No. 472/1996) advancing the contention that FEP Pakistan is the assignee. Under the circumstances, in my view it would have been the original author, who alone can contest or challenge such assignment and not Friend Publishers, who themselves are using this title and are publishing the said books without any assignment. During them course of arguments, I have asked Mr. Hasan Inamullah whether he possesses any assignment as provided under Section 15 of the Copyrights Ordinance, 1962, to which he has very candidly answered in negative. The case of RIAZ AHMED MANSURI (ibid) though arises from a dispute of printing and publishing a magazine titled as The Cricketer, it involves interpretation of Section 20(2) of the Trade Marks Act, 1940 and, therefore, the rule laid down in that case is not relevant. I would like to point out that the criteria for granting interim injunction in the matter of copyrights was discussed by my learned brother Mamoon Kazi, J., in the case of Shakeel Adilzada v. Pakistan Television Corporation Limited and 2 others (1989 CLC 2447) where following cautions were observed which are required to be observed by a Court while granting interim injunction:- "16. The object behind giving the thumb nail summary of these cases is to highlight the factors the Court has to take into consideration before granting an injunction when infringement of a copyright is alleged. It follows from the above enumeration that copyright can be assigned only by a written agreement. Even though copyright has not been specifically assigned the Court can still draw its influence by looking at the agreement. The mere circumstance that an author has been engaged by a publisher to write a book for remuneration would itself not vest the copyright in the publisher unless such an intention can be clearly gathered from the agreement. In case the Court comes to a conclusion that the author has only given a licence to the publisher to publish the work, it will have to look into the agreement to determine the conditions on which the same was given to the publisher. However, copyright .Cannot be presumed and when action is brought before the Court by the plaintiff to prevent infringement of copyright; the Court would grant an injunction only when the right claimed by the Plaintiff is clean. The conduct of the Plaintiff would also be one of the relevant factors to be considered by the Court while granting or refusing an injunction."
(Underlining is mine)
8. In the case of Abbas Hussain Farooqui v: Messrs Royal Printing Press and Ali Printing Service, Karachi and 10 others (PLD 1970 Karachi 554) a division Bench of this Court, at length discussed the terms and phrase "literjary work" and "originar iiterary work. It was held, inter alia, that copyright being proprietary right, ignorance is no excuse for its infringement. In that case the plaintiff was publishing diary which, to much extent was similar to the diaries being published by the plaintiff. It was held as follows:- "It is no doubt correct that a few changes have been introduced here and there in these diaries but that by itself would not deprive the plaintiff of his copyright. In many cases the alleged infringement does not consist of an exact or verbatim copy of the whole or any part of the. Earlier work, but merely resembles it in a greater or a'lesser degree. Indeed, it is usual for an infringement to consist of an exact reproduction of the whole of the plaintiffs work."
9. In the instant case, it was also submitted on behalf of Friend Publishers that the books being printed ajid published by them are in the name of the original authors while FEP Pakistan is printing and publishing the books in the name of Pakistan authors, therefore, it was argued that both publications are different and that the FEP are not .Entitled for injunction. I have compared all such books which were produced, by the parties during the course of* Searing. No doubt, in some of the books being published by FEP Pgjristan, there appear names of Pakistani authors in reference to "edited by" and compiled by" but majority of the books were in the name of original authors. The material, colour scheming and style of printing are similar in all these books. The Friend Publishers have taken three mutually destructive pleas which disentitles them from seeking interim injunction against FEP. Firstly, it is claimed by them that in the years 1981-82 they obtained permission assignment for printing and publication of these books from FEP Singapore but at the same time they have denied its existence.
If they are claiming assignment from FEP they have to accept its existence. Secondly, if they possess assignment as claimed by them, then, why they have invited objections to publication of these books through an advertisement published in Singapore. Further, they have not filed any rectification application for the removal of FEP (Pakistan) registration in respect of copyright. Prima facie, all these show that they are neither original author nor assignee.
10. Reverting to the question of permission granted by. Provincial Government to Friend Publisher it reveals that such permission was granted to one Messrs New Indus Publishers, having office at 34, New Urdu Bazar, Karachi, which is the same address as of Friend Publisher. It is .Claimed by Mr. Hasan Inamullah that this New Indus Publishers is a proprietary Firm and is subsidiary of Friend Publisher. No doubt, under provisions of this rules the Director Information of Provincial Government is competent to grant permission to print or publish a book but these rules do not vest any power in the said Director to permit publications in infringement of copyright. Therefore, simply to say that Friend Publishers have obtained permission from Provincial Government to print, publish and sell these books in the open market does not authorise them to violate copyrights as guaranteed under the Copyrights Ordinance, 1962. I would like to observe that the 1969 Rules in no manner authorise the Provincial Government to permit violation, of the provisions of Copyrights Ordinance,1962.
11. In view of the fact that under section 41 of the Copyrights Ordinance, 1962 the Registrar Copyrights in respect of books mentioned in paragraph 5 have granted certificates which are still on the register of copyright and no attempt has been made for its rectification, I am afraid that the question challenging its legality or validity cannot be considered in these proceedings, for which the proper course would be to apply before the Registrar for certification. In presence of these registrations sanctity is prima facie attached to the owner of all such registrations. It is stated by Ch. Tanveer Amjad that Messrs Friend Publisher singly printing, publishing and selling nine of those books as mentioned in paragraph 5 of the plaint in Suit No.338/96. As far as those books mentioned in paragraph 6 of the. Said plaint are concerned, it is stated by the learned counsel appearing for Messrs Friend Publisher that they are not printing, publishing or selling those books.
12. In view of the above discussion, I am satisfied that the FEP have good prima facie case and if injunction as prayed is not granted, they would suffer irreparable loss and injury and that the balance of, conveniences is in their favour. I, therefore, grant CMA No. 2275/1996 in Suit No.338/1996 in respect of books' as mentioned in paragraph 5 of the plaint while CMA No. 2944/1996 in Suit No.472/1996 is dismissed. This interim injunction against Friend Publisher shall come into force at once in respect of printing the said books. However, they shall be entitled to sell and distribute all such books, which are already available in the market, but subject to submission of monthly accounts with the Nazir of, this Court. In this respect, the Friend Publishers is directed to i.e a statement in writing within 15 days showing how much books in number pertaining to each title are available in the market (including the names of book sellers) and which were printed prior to this order. In this regard, FEP Singapore and FEP Pakistan would be at liberty to i.e objections to the numbers of the books of Friend Publishers available in the market. The Friend Publishers are further directed to submit the names and addresses of all the printers of their books within the period as mentioned above. In case, all such books which are subject-matter of both these suits and belongs to Friend Publisher, are not finally sold by 30th July, 1997 they shall withdraw the same from open market.